NMA E-Newsletter #292: Passing the Sniff Test

The civil forfeiture racket is never far from the headlines these days, and thanks to the ubiquitous use of drug sniffing dogs, it’s easier than ever for police to shakedown motorists and get away with it.

Here’s how the scam works: A police officer pulls over a driver for a routine traffic stop, becomes “suspicious” of possible illegal activity (usually drug-related) and asks if he can search the vehicle. If the motorist refuses, the officer calls for a trained drug dog to sniff around the exterior of the vehicle.

Invariably, the dog alerts to something, and a search ensues. Sometimes the search reveals cash or other valuables, which are assumed to be connected to illegal activity and confiscated. Drivers then have a hard time getting their property back and often must mount expensive legal challenges to do so. (See the winter 2014 Driving Freedoms cover story for more on the hazards of civil forfeiture.)

The dog provides the key to unlocking this treasure trove. Courts have made clear that the use of a drug dog does not require probable cause or reasonable suspicion and that the dog’s detection of the scent of contraband can produce the probable cause needed to search the vehicle.

But how reliable are these beasts? As it turn out, not very, even though a dog’s sniffer can be up to 100,000 times more sensitive than a human’s. Dogs can distinguish smells from one another even when they’re mixed together. So, when a person walks into a kitchen and smells pizza, all he smells is pizza. But when a dog smells pizza, it’s smelling sausage, cheese, onions, oregano, tomato sauce and crust. This is why a trained dog can smell trace amounts of an illicit substance even if the odor is being masked by coffee grounds, perfume or dryer sheets.

Law enforcement officials would have us believe that drug dogs are infallible when it comes to detecting drugs. But nothing could be further from the truth, according to a study from the University of California at Davis released last year. Researchers recruited 18 dogs and their handlers and gave them a simple task: go through a room and find the hidden drugs and explosives.

But there was a catch. The room contained not drugs or explosives. To pass the test, the teams had to search the room and detect nothing. Out of 144 trials, that only happened 21 times, for a failure rate of 85 percent. Why so many false positives? The study concluded that “handler beliefs affect scent detection dog outcomes,” and that the dogs have been trained to alert in response to subtle cues from their handlers. This means the handler can get the dog to alert even if no drugs are present. View this now-famous video to see how the whole thing works.

Thankfully, some in the law enforcement community have begun to challenge the reliability of drug-sniffing dogs. In 2012 two Nevada Highway Patrol (NHP) K-9 officers filed a lawsuit claiming that the drug dogs used by the Las Vegas Metropolitan Police Department and the NHP had been trained to respond to their handlers’ cues which led to illegal searches and the seizure of millions of dollars from motorists. The outcome of the case is still pending.

What can you do if you’ve been pulled over for a legitimate traffic stop and the cop wants to release the hounds on you? First, state clearly that you do not consent to any searches. If you are asked to exit your vehicle, do so but lock the doors and don’t give your keys to the officer. State your objection to the use of the dog.

Most of the time, the dog will have to be brought to the scene. While you wait, ask if you are being detained and if you are free to leave. Keep asking. The police cannot detain you indefinitely. If the delay extends beyond the time it takes to run your plates and write up the citation, the use of the dog becomes constitutionally suspect. The key is to assert your rights throughout the stop. It may not prevent a search of your vehicle, but it may protect you down the road and lead to a better outcome in the courtroom.

Not an NMA Member yet?

Join today and get these great benefits!